ANNOTATED TEXT OF CISG
Article 79

(1) A party is not liable for a failure to perform any of his obligations
if he proves that the failure was due to an impediment beyond his control
and that he could not reasonably be expected to have taken the impediment
into account at the time of the conclusion of the contract or to have
avoided or overcome it or its consequences.

(2) If the party's failure is due to the failure by a third person whom he
has engaged to perform the whole or a part of the contract, that party is
exempt from liability only if:

(a) he is exempt under the preceding paragraph; and

(b) the person whom he has so engaged would be so exempt if the
provisions of that paragraph were applied to him.

(3) The exemption provided by this article has effect for the period during
which the impediment exists.

(4) The party who fails to perform must give notice to the other party of
the impediment and its effect on his ability to perform. If the notice is
not received by the other party within a reasonable time after the party
who fails to perform knew or ought to have known of the impediment, he is
liable for damages resulting from such non-receipt.

(5) Nothing in this article prevents either party from exercising any right
other than to claim damages under this Convention.

Hans Stoll & Georg Gruber, Commentary on the UN Convention on the International Sale of Goods(CISG) Article 79, 819-22 (Oxford University Press, 2d ed. 2005) (discussing “acts or omissions” of a third party when the seller has no control over the choice of the supplier or its performance)

Harry M. Flechtner [U.S.], Issues Relating to Exemption (“Force Majeure”) under Article 79 of the United Nations Convention on Contracts for the International Sale of Goods (CISG), University of Pittsburgh Legal Studies Research Paper No. 2008-08. Material prepared for 4th edition of Honnold, Uniform International Sales under the United Nations Convention, Kluwer (2009). Thirteen page text may be downloaded at <http://ssrn.com/abstracts=1118124>

* Most members of the Autonomous Network of CISG Websites also offer bibliographies. Many are tailored, concentrating on commentaries by authors from or writing on CISG issues of special interest to specific countries or regions; some, e.g. CISG online are general and extensive; some, e.g., CISG-Belgium and CISG-Finland also list commentaries by individual articles of the CISG.

To identify other relevant commentaries, go to the cisgw3 Bibliography and Bibliography Search Form [exemption, force majeure, excuse and impediment are search form entries you may wish to consider]

foreseeability. An Article 79 issue present is whether it was reasonable for the non-performing party to foresee or take an impediment into account. For specific mention of foreseeability elsewhere in the CISG, go to Annotated Text of Article 25 [Definition of fundamental breach] and Annotated Text of Article 74 [General rules for measuring damages].

"impediment" [79(1), (3) and (4)]. "[S]ubstantial difficulties . . . seem to have been swept under the carpet. One issue is whether the text may apply when the seller delivers defective goods without fault on his part as opposed to a situation of nondelivery or late delivery. According to a common law commentator, article 79 should not apply because 'deciding whether the defect results from "fault" may call for enquiry into the manufacturing process of the seller or of a remote supplier' and that 'a final resolution of this issue is expensive and uncertain'. See J. Honnold, Uniform Law for International Sales 430 (1987) . . . Therefore, the author insists that use of word 'impediment' (like the word obstacle) implies that nonperformance consists in nondelivery but not in defective performance. Nevertheless, according to the English text itself, excuse may be brought up by a party for failing to perform 'any of his obligations,' and conformity of the goods is unquestionably an obligation of the seller (art. 35). Therefore, 'the obligation to deliver conforming goods also comes within the scope of Article 79.' See Tallon in [C. Bianca & M. Bonell], Commentary on the International Sales Law 577 [1987]." Bernard Audit, "The Vienna Sales Convention and the Lex Mercatoria", in: Lex Mercatoria and Arbitration, rev. ed., T. Carboneau ed. (Juris publishing 1998) 179-180 n.17.

"If the party's failure is due to the failure by a third person whom he has engaged . . ." (79(2)). Colloquies at the Diplomatic Conference on the scope of Article 79(2). OR 378-381, paras. 21-51; OR 408-409, paras. 61-74; OR 410-412, paras. 1-37 [OR = Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna 10 March 1980, A/CONF. 97/19]